“Progressive Except Palestine” is real, and it has consequences. Supreme Court Justice Ruth Bader Ginsburg might not even know she has it, but she does.

The iconic and even trending Supreme Court Justice Ruth Bader Ginsburg (lovingly known to fans as Notorious RBG or Ruth Badass Ginsburg) came this close to receiving the 2018 Genesis Prize, aka the “Jewish Nobel,” awarded yearly to Jews who have attained excellence and recognition in their fields, and who inspire others in their dedication to the Jewish community, Jewish values, and the State of Israel.

The award comes with a $1 million payout, and there, as they say, was the rub.

Ha’aretzreports that the prize was taken away from Ginsburg (and given to Natalie Portman) because the committee’s legal advisor discovered a rule against awarding monetary prizes to US judges. She had already decided to donate half of her prize money to women’s groups in the US, and the other half to equivalent organizations in Israel. Apparently her office had even contacted the groups and told them they had some big bucks coming their way.

Well, the charities got stiffed, but Ginsburg got a consolation prize: a new and prestigious award was created for her – the Genesis Prize for Lifetime Achievement. She will receive the award during a ceremony next summer.

Does Ginsburg meet all of the qualifications for a Genesis award? She has indeed attained excellence and recognition; no doubt she has been an inspiration – to Jews and Gentiles alike – as she has beaten the odds and risen to the very top of her field. Is she “dedicated to Jewish community, Jewish values, and the Jewish State”? Let’s do some sleuthing to find out.

A little background

Ginsburg was born on March 15th, 1933 in Brooklyn, New York. She fought her way past gender discrimination (one of 9 women in a class of 500 at Harvard Law School) and became only the second female and the sixth Jewish justice to be appointed to the Supreme Court.

Religiously, Ginsburg became non-observant when, at her mother’s death, she saw up close the second-class role of women in Orthodox Judaism. She has worked tirelessly for women’s rights throughout her distinguished career.

My heritage as a Jew and my occupation as a judge fit together symmetrically. The demand for justice runs through the entirety of Jewish history and Jewish tradition. I take pride in and draw strength from my heritage, as signs in my chambers attest: a large silver mezuzah on my door post, [and the Hebrew words] from Deuteronomy: “Zedek, zedek, tirdof” — “Justice, justice shall you pursue.”

Check the box marked “Jewish values.”

Moving on to “Jewish community,” just look back to last September. Ms. Ginsburg surprised members of a Washington DC synagogue when she came to speak at their Rosh Hashanah service. She talked about faith, about her fellow Jewish justices over the years and the views they have shared. She reminded worshipers that “the Jewish religion is an ethical religion. That is, we are taught to do right, to love mercy, do justice.” And she remarked that their shared experience as Jews makes them compassionate: “If you are a member of a minority group, particularly a minority group that has been picked on, you have empathy for others who are similarly situated.”

Ginsburg has pursued justice wholeheartedly all her life, and has throughout her career advocated for progressive causes. In 1972, she co-founded the Women’s Rights Project at the ACLU, and fought more than 300 gender discrimination cases between 1973 and 1974.

But these admirable convictions we see in Ginsburg that are common among many Americans – empathy toward the marginalized, advocacy for defenseless – suddenly evaporate in certain situations. Perhaps it’s subconscious, but there lurks another loyalty ready to override the cause of true justice and compassion. Ruth Bader Ginsburg is among the many influential members of the P.E.P. Club: Progressive Except Palestine.

For someone dedicated to liberty and justice for all, she is resoundingly silent on the issue of Palestine. Nowhere in her recently published collection of writings, My Own Words, do the words “Palestine” or “Palestinian” appear. Even “Arab” is nowhere to be found, although she discusses the Holocaust, Zionism, and Israel.

Ginsburg was poised to donate $500,000 to women’s organizations in Israel, a country which – surely she has heard – has been flagrantly violating the human rights of Palestinians for decades, denying them the most basic justice. This is a country in which many rock stars fear to book a concert, lest they be ostracized by the moral majority for pandering to an apartheid state – but Ginsburg was about to drop a cool half a mil.

Well, at least we can check the most important box of all: the one marked “dedication to the State of Israel.”

This leaning is no surprise, given Ginsburg’s admiration for one particular former US Supreme Court justice.

The Honorable Louis Brandeis

Louis Brandeis, associate justice on the US Supreme Court, 1916 to 1939

Ruth Bader Ginsburg is a big fan of the Supreme Court’s first Jewish justice, Louis Dembitz Brandeis. Brandeis is revered today as a great judge, but at the time of his appointment – 1916 – he was recognized by some as “unscrupulous” in his methods and at times “unethical” in his behavior.

Distinguished historian Bruce Allen Murphy revealed that Brandeis was involved in some covert pursuits for many years, both before and during his time on the Supreme Court. The fact that he and his primary cohort, Felix Frankfurter, kept their work secret indicates that they knew it was – or at least looked – unethical.

Brandeis’ endeavors included (but were not limited to) advancing the Zionist agenda, both in the US and internationally. Murphy describes his work in general as “part of a vast, carefully planned and orchestrated political crusade.”

Israeli professor Dr. Sarah Schmidt described a clandestine society of which Brandeis was a part: “a secret underground guerilla force determined to influence the course of events in a quiet, anonymous way.” The most ambitious young Jewish men were recruited for the work. Their secret initiation ceremony included the charge:

You are about to take a step which will bind you to a single cause for all your life…[Y]ou will be fellow of a brotherhood whose bond you will regard as greater than any other in your life – dearer than that of family, of school, of nation. By entering this brotherhood, you become a self-dedicated soldier in the army of Zion. Your obligation to Zion becomes your paramount obligation…It is the wish of your heart and of your own free will to join our fellowship, to share its duties, its tasks, and its necessary sacrifices.

Brandeis also served as president of the Provisional Executive Committee for Zionist Affairs – essentially the leader of the world’s Zionists. He spent several months during 1914 – 1915 on a speaking tour to build a network of support for the “Jewish homeland,” underscoring the goals of self-determination and freedom.

In 1916, President Woodrow Wilson named Brandeis to the Supreme Court. As required, Brandeis officially resigned from his formal affiliations, including stepping down from his leadership role in Zionism. However, he zealously continued his work on a more informal basis, even from his Supreme Court chambers. Later, he would persuade the next 2 Jewish justices – Cardozo and Frankfurter – to join the ranks of the Zionist Organization of America, assuring a continued, subtle partiality toward the Jewish project.

Brandeis is tapped

In fact, Brandeis remained so deeply involved in Zionism that he was chosen by a leader of the movement for a very important job: that of, possibly, helping to turn the tide of World War I for the British.

Great Britain was in desperate need of an ally in the war, and the Zionists were in need of an ally in their quest for a homeland. Brandeis was tasked with delivering the United States as an ally to Great Britain; Great Britain would reimburse the Zionists with the Balfour Declaration.

Samuel Landman, secretary of the World Zionist Organization, claimed in a 1936 article in World Jewry, that it was “Jewish help that brought USA into the war on the side of the Allies.” The goal was not victory for the Allies, but real estate in Palestine, so Brandeis and associate Felix Frankfurter reportedly worked to ensure the war would last until Palestine was in the bag. They even reportedly sabotaged a potential opportunity to end the war in May 1917 (18 months early), which would have saved much destruction and many lives, including Brandeis’ fellow Americans.

Eventually, of course, Germany was defeated. According to historian Henry Wickham Steed, one of Germany’s top generals considered the Balfour Declaration to be “the cleverest thing done by the Allies in the way of propaganda,” and wished Germany had thought of it first.

Landman further stated that Germany was aware of the Jewish connection, and, chillingly, this “contributed in no small measure to the prominence which anti-Semitism occupie[d] in the Nazi program” only a few decades later. This horrific irony can not be overstated.

Hitler’s Europe, his Holocaust Kingdom, was not lawless. Indeed, it was a kingdom full of laws, laws deployed by highly educated people—teachers, lawyers, and judges—to facilitate oppression, slavery, and mass murder. We convene to say “Never again,” not only to Western history’s most unjust regime, but also to a world in which good men and women, abroad and even in the USA, witnessed or knew of the Holocaust Kingdom’s crimes against humanity, and let them happen…

In striving to drain dry the waters of prejudice and oppression, we must rely…upon the wisdom of our laws and the decency of our institutions, upon our reasoning minds and our feeling hearts. And as a constant spark to carry on, upon our vivid memories of the evils we wish to banish from our world.

And indeed, Ginsburg has famously spent years of her life checking America’s laws against the rubric of our Constitution to banish what evil she can from America.

But as a highly intelligent woman, in the Information Age, is it even remotely possible that she is not aware of the opinions of progressive Jewish anti-Zionist voices from the time of Brandeis, like Alfred Lilienthal and Rabbi Elmer Berger, or the historians of our time who have brought to light the folly of early Zionism, like Noam Chomsky, Norman Finkelstein, and Ilan Pappé? (The Palestinian historians who first wrote about this, sadly, are less likely to have shown up on her radar.)

Can she not know about the displacement of 750,000 Palestinians in the Nakba? Or the Deir Yassin massacre? Or a hundred other stories of injustice imposed on a people because of where they lived by another people who had been mistreated because of what they believed?

Aharon Barak

To be passionate about justice and yet ignore this gross injustice requires a studied unconcern. “Progressive Except Palestine” has mentors in the highest places, and Ginsburg has a friend who may be among the best.

Meet Aharon Barak

Former Israeli supreme court president Aharon Barak, partly educated at Harvard, talks some good talk, the kind that would resonate with Americans:

Democracy has its own internal morality, based on the dignity and equality of all human beings…Most central of all human rights is the right to dignity. It is the source from which all other human rights are derived.

[E]quality is a fundamental value of every democratic society…. The feeling of the lack of equality is the most difficult of feelings. It undermines the forces that unite society.

And he discusses his home country in language that sounds relatable:

The State of Israel is a State whose values are Jewish and democratic. Here we have established a State that preserves law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular. Between these two there are harmony and accord, not conflict and estrangement.

The Israeli legal system is a young system, albeit one with deep historical roots that reflect its Jewish values. It is a legal system that guards its democratic nature despite the existential struggle it has faced since its founding.

No wonder Ginsburg and Barak are close: they share a deep reverence for democracy, and for the Jewish values they like to believe are inherent in their respective countries’ justice systems.

But Barak sees the Israeli court, and Israel itself, as an exceptional world. It is not a simple, safe democracy like America, but a “defensive democracy” that fights daily for its very survival. Barak lives under the delusion that nuclear-capable, Iron-Dome, cruise-missile, armored-personnel-carrier Israel, is under constant “existential threat” from rock-throwing, homemade-missile-launching, underfed Palestinians. Israel was created through ethnic cleansing and is maintained through illegal occupation and blockade, and when Palestinians legally exercise their right to resist, Barak sees this as “terrorism.”

we have recognized the power of the state to protect its security and the security of its citizens on the one hand; on the other hand, we have emphasized that the rights of every individual must be preserved, including the rights of the individual suspected of being a terrorist (sic).

It sounds so ethical, but Gideon Spiro knew better and wrote eloquently about “The Barak Method”:

No doubt about it: Barak has succeeded in creating around him a “human-rights man” aura even outside Israel. This is a huge propaganda feat…considering that Barak is, to a large extent, the judicial designer, enabler and backer of the regime of human-rights abuses in the Occupied Territories. [He] legitimized almost all the injustices of the occupation. He has led Israel’s judicial system into the role of indentured servant to the security forces – the IDF, the Shin Bet (domestic secret service), the Mossad and the settlers.

Barak’s time on the bench is replete with examples of Supreme Court benevolence toward individuals suspected of being terrorists (i.e. pretty much every Palestinian who set foot in his courtroom). One such example happened in 1992.

Mass Deportation

Hamas had killed six Israeli soldiers, and in retaliation, the IDF arrested, blindfolded, and deported 415 Palestinians (believed to be Hamas members) to Lebanon.

Human rights organizations immediately petitioned the Israeli Supreme Court – Barak was on call that night – and testimony was heard. It was pointed out that the men had not been given a hearing before the deportation.

The Court ruled: Israel must grant the deportees a hearing – but it would take place a month later.

The deportees spent the month in freezing winter weather. The Red Cross asked to bring them medical aid, but Israel refused. The UN Security Council condemned the mass deportation (full text here).

On January 17, 1993, the hearing in Israel began. A few days later, the Israeli Supreme Court found – unanimously – that in one sense, the deportation orders were not valid, but in another sense, the orders were valid. (Obviously, this is a simplification; find details here and here.)

Punitive house demolition

Another area in which Aharon Barak labored to find the alleged balance between security and human rights is in the area of house demolition. His court recognized the need for proportionality, and concluded that “only when human life has been lost is it permissible to destroy the buildings where the terrorists lived.”

A relative of Abdelrahman Shaludi, a Palestinian who killed two Israelis last month, displays his portrait inside his family home after it was destroyed by Israel in E. Jerusalem. Nov. 19, 2014.

The struggle was real for Barak and the rest of the Israeli Supreme Court on the issue of administrative detention – holding people for months or years without even charging them with a crime. Once again, they had to choose between protecting fundamental human rights of the individual or protecting “national security.”

They went with national security. And so the practice of administrative detention continues unchecked: Palestinians are arrested without charge and detained for 6 months; their case undergoes “judicial review,” in which a judge looks at their file (without representation from the detainee) and often approves another 6-month term, and another, and another. Some have been held for years. During Barak’s reign, well over a thousand Palestinians were held under administrative detention.

Since 1967, Israeli forces have arrested over 800,000 Palestinians – almost 20% of the Palestinian population. About 40% of the male Palestinians in the occupied territories have been arrested at least once.

The separation (aka apartheid) wall

It was on Aharon Barak’s watch that construction of the Wall was begun. Correction: “security fence to prevent terror.” The damage done by this “fence” – confiscating Palestinian land, cutting off children from their schools, patients from their doctors, workers from their jobs, families from each other, farmers from their land – this is what Barak termed “proportionate damage.” In 2004 and 2005 he and his Court dropped a few crumbs for the Palestinians in the form of rulings to alter the route of the wall a bit, but at no point did they address the legality of the wall itself.

The rest of the world, however, did address the issue. In 2004, the UN Security Council called on Israel to abide by international law; the General Assembly called on the International Court of Justice to rule on the wall. The ICJ complied, in 2004 finding the wall to be in violation of international law. The Israeli Supreme Court chose, as usual, to ignore near global condemnation, Barak himself claiming “factual superiority” over the ICJ.

Extrajudicial executions (aka targeted killing)

The final verdict of Aharon Barak’s career, the cherry on top of his years of whatever-that-was, looked just like the others. It was all about balance. Harm – even death – to civilians is permitted if there was no better way to manage the situation; harm must be proportionate, that is the civilian “damage” must be comparable to the military advantage achieved. In Barak’s own decisive words, “we cannot determine that a preventative strike is always legal, just as we cannot determine that it is always illegal.” So, kill if you must, and fall on the mercy of the Court (wink, wink).

Torture (aka moderate physical pressure)

Aharon Barak had a few words on the issue of torture, which Justice Ginsburg found compelling. She explained in a recent interview:

The police think that a suspect they have apprehended knows where and when a bomb is going to go off…Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’

Barak himself elaborated: “They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law.”

An Israeli Peace activist demonstrate a torture techniques used by Shin Bet interrogators against Palestinian prisoners.

But once again, the actions of the State speak louder than the words of the Court.

The ruling to which Ginsburg referred left a “narrow opening for torture: a defense of “necessity,” which allows for interrogators, during “extraordinary circumstances” (for example, in a “ticking time bomb scenario,” when innocent lives, according to Israeli officials, are believed to be in the balance), to independently choose to break the no-torture law. Later, if torturers are taken to court for it, they may use the “necessity defense.”)

That “narrow opening” has proved to be wide and welcoming.

According to a 2016 Ha’aretz article, over 1,000 complaints of torture have been registered against Israel’s General Security Service, Shin Bet, since 2001. Not a single criminal investigation has ever been launched by the one investigator that the department employs.

It has been reported that 70-90% of the time, detained men, women and children are not permitted to speak to anyone – including a lawyer – until they have “confessed.” And once that confession has been obtained, whether it is genuine or not, there is no recanting.

Caution: PEP causes selective blindness

While Justice Ruth Bader Ginsburg has done great things for women and minorities, and is no doubt a woman of compassion and conscience, she shows all of the symptoms of P.E.P. Prognosis: if the anti-BDS law (Israel calls BDS an “Israel de-legitimization program”) comes before the Supreme Court, will she uphold it, limiting our free speech and support for human rights? Or if the Taylor Force Act comes up for judicial review – the law which would effectively deprive Palestinian widows of their “survivor benefits” (Israeli hasbara calls it a “terrorism incentivizing program”), would Ginsburg sympathize with women and orphans when they are Palestinian?

It is likely that she has seen reports of the humanitarian crisis in Gaza and the rampant and illegal settlement-building in the West Bank and East Jerusalem, but there is no indication that these issues have penetrated her consciousness. If they had, one expects she would be in a moral quandary –what does one do with a lifetime of unexposed bias when light finally shines on it?

Conclusion

Lady Justice is the traditional symbol of our judicial systems. Her attributes include a blindfold – to represent impartiality and a total absence of bias; a balance – to represent the weighing of the evidence as the only source of a decision of guilt or innocence; and a sword – to represent the authority of the court, and the swiftness of the meting out of justice.

“Progressive Except Palestine” is, sadly, a reality for too many people of all faiths and and people of no faith. The result? Where justice ought to be applied impartially, objectivity becomes impossible when Israel is part of the equation. Where guilt or innocence should be determined based on evidence, the label “terrorist” makes guilt a foregone conclusion. And where justice should be meted out swiftly, only injustice seems to move at that pace.

And when one of America’s Supreme Court justices is complicit in this, there is little hope of improvement.

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